On December 16, 2007, the National Labor Relations Board (NLRB) issued its much-anticipated decision in Guard Publishing Co., 351 N.L.R.B. No. 70 (2007). In a decision favorable to employers, it held that an employer does not violate the National Labor Relations Act (NLRA) by restricting nonwork-related email solicitations and, moreover, by prohibiting union-related email solicitations on the basis of this restriction, provided the restriction is applied uniformly. Also favorable to employers, the Board adopted a more flexible discrimination standard to be used when examining alleged discriminatory enforcement of a policy.

The decision in Guard Publishing is important to all employers who provide email access to employees, because most employers, including those who are not unionized, are subject to the NLRA. Accordingly, almost all employers will want to consider this significant decision when writing, reviewing and enforcing email policies.

Background. The employer in this case had a “Communication Systems Policy,” which stated that the company owned its communication systems and which prohibited use of these systems “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations or other non-job-related solicitations.” An employee, who also was the union president, had been disciplined under this policy for sending three union-related emails: one responded to earlier emails “to set the record straight,” another asked employees to wear green to support the union’s position in labor negotiations and one asked employees to participate with the union in a parade. At issue was whether disciplining the employee for these union-related emails violated the NLRA.

Communications Systems Policy Valid; No Statutory Right to Use Employer’s Email for Union Purposes. In an issue of first impression, the NLRB found that no statutory right exists for an employee to use an employer’s email system for union purposes. The NLRB emphasized employers’ basic property right in email and other communication systems, comparing such systems to other employer property such as bulletin boards and telephones. Accordingly, and because the policy at issue did not discriminate against unions on its face, the policy was deemed lawful.

Discriminatory Enforcement of Policy Under New Standard. In examining whether the valid Communications Systems Policy was enforced discriminatorily to prohibit union-related emails, the NLRB set forth a new standard of discrimination. Specifically, unlawful discrimination consists of disparate treatment of activities or communications of a similar character on the basis of union or other Section 7-protected status. (Section 7 of the NLRA gives both union and nonunion employees the right to engage in protected concerted activities.) The NLRB also noted that an employer’s action would be unlawful if the evidence showed an anti-union motive for the line-drawing. According to the NLRB, this approach better reflects the principle that “discrimination means the unequal treatment of equals.”

Applying this new standard, the NLRB found no discriminatory enforcement of the employer’s Communication Systems Policy with respect to the two emails soliciting support for the union (asking employees to wear green in support of the union and to participate in the union parade), because there was no evidence that employees had ever used the email system for solicitations on behalf of any noncharitable organization. The NLRB, however, found discriminatory enforcement of the policy with respect to the clarification email (“to set the record straight”) on the basis that the employer permitted personal communications through the email system; this email was not a solicitation and therefore not prohibited under the employer’s policy.

Practical Guidance. As a result of Guard Publishing, employers may want to review and update, as appropriate, their current email policies and their enforcement of them. The NLRB has provided some practical guidance to consider Employers will want to analyze their specific needs to determine which, if any, distinctions are appropriate for them. It’s also worth noting that the split 3-2 decision in Guard Publishing is subject to appeal, and it also may be subject to later revision, particularly as Board membership changes